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Defendant’s 15 year sentence reversed !!!

In State v. J.F., St. Lucie County case number 56 2004 CF 320/  DCA # 4D08-406,  the Defendant was charged with one (1) count of Lewd and Lascivious Molestation of a ten (10) year old child.   The charge carries with it a maximum prison sentence of thirty (30) years in the prison.

J.F. was a young college graduate in criminology, with no prior criminal record whatsoever.  He adamantly maintained his innocence during the police “investigation”.

Another lawyer handled the trial, where the evidence, other than the child’s claim, was extremely “thin”.  For example, at the time of the alleged “molestation”, the child was on a sleepover with the Defendant’s daughter, who was in bed and awake at the time of the alleged assault, and who testified nothing untoward happened.  There was no evidence of injury or even swelling, bruising, edema, or any of the ordinary kinds of evidence that one would expect to find in a  righteous prosecution.  The sole evidence for the Government consisted of the child’s uncorroborated claim.

The trial attorney, not being experienced in these kinds of cases, chose a defense of “impossibility”, i.e., that the crime could not have happened the way the child claimed it had happened.   Although the lawyer did a laudable job during the 3 1/2 years the case was pending trial, including creating a video “re-creation” of the crime scene—-the defense did not provide an essential piece of information to the inquisitive jury, to wit, why would a ten year old child “make-up” such an allegation?  It is imperative in these kinds of cases to be able to provide such an explanation to jurors.

The case finally went to trial in late 2007, and after a week long trial, the jury convicted J.F.  At sentencing in early 2008, the trial judge sentenced J.F. to 15 years in prison, to be followed by 10 years of “sex offender” probation.

The defendant’s family hired Jay Kirschner, who immediately sought and was granted a supersedeas bond for his client, enabling J.F. to be released from prison, where he already had begun to serve his sentence.

Then began the tedious, complex, intricate and time consuming process of appealing the conviction and sentence.

In Florida, the wrongfully convicted person must first file a Notice of Appeal within thirty (30) days of being sentenced.  The trial record is then prepared by the clerk, and transmitted to the District Court of Appeal (in this case, the Fourth District Court of Appeal in Palm Beach County.

The Defendant/Appellant then has  fifty (50) days within which to file his or her “initial brief” .   The government then has thirty (30) days to file an “Answer” brief.  Appellant then has the opportunity to file a “Reply” brief.   A brief simply is a recitation of the arguments, legal and factual, that the Defendant is relying upon in attempting to get the conviction reversed.   To view the “Initial” and “Answer” briefs filed in J.F.’s case, click here.

Kirschner found an error by the trial judge in the trial.  In a classic case of prosecutorial “overreaching”, the Government introduced into evidence a highly prejudicial, completely irrelevent photograph.   Kirschner argued vehemently and repeatedly throughout the briefing process, and again at oral argument before the three (3) judge panel at the Fourth District Court of Appeal in Palm Beach, that the single picture had unfairly prejudiced the jury against the Defendant, thus denying him the benefit of a fair trial.

Finally, just a few weeks ago, on March 31, 2010, J.F. was vindicated.  The appellate panel agreed with Kirschner’s argument about the unnecessarily inflammatory and prejudicial photograph.  The decision of the panel was unanimous.  The judgment of conviction and sentenced were reversed, and the case was “remanded” to the trial court for a new trial.

If you’d like to read the opinion of the Fourth District Court of Appeal, just go here: .

J.F.’s case is the first one…on the top of the page.

The lesson here is that even with talented trial counsel, unjust results sometimes tragically occur.  When they do, one needs to know that there are trial lawyers who also are familiar with and experienced in the appellate process who are available to make right the wrong visited upon the citizen accused by a system which all would agree, is imperfect.

For your appellate lawyer needs, please contact Jonathan Jay Kirschner, Esq., & Associates LLC.  (

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